When we last left off in the ongoing saga involving Kim Dotcom and the bumbling investigation into alleged crimes stemming from Megaupload, a New Zealand appeals court had ruled (PDF) nearly two weeks ago that Kim Dotcom has the right to sue the government of New Zealand for illegal surveillance.

As we reported last year, the NZ government admitted after the fact that Dotcom should not have been subjected to government surveillance due to his obtaining permanent resident status. New Zealand’s Government Communications Security Bureau (GCSB), analogous to the National Security Agency in the United States, is only allowed to engage in surveillance of foreigners.

According to new documents acquired by a New Zealand TV channel, the GCSB already had information as of December 16, 2011 (before the January 2012 raid) showing that Dotcom was a permanent resident of New Zealand and that the agency knew Dotcom should not have been targeted at all. Interestingly, the documents also show Dotcom’s government code name: “Billy Big Steps.”

On Tuesday, 3News reported that December 16, 2011 was the same day that spying on Dotcom began. By January 11, 2012, New Zealand police had Dotcom’s “entire immigration file.” The GCSB ended its spying on January 20 and carried out the raid the next day. By February 20, 2012, the GCSB knew that its spying was illegal—”but it took seven months until this was revealed to Dotcom, the prime minister, and the public,” the TV channel reported.

As a result of the disclosure, Hugh Wolfensohn, the then-deputy director (and acting director) of the GCSB, has now resigned. There are also questions as to whether or not Wolfensohn received a “golden handshake,” or some sort of notable compensation as a result of his sudden resignation. Wolfensohn was a 25-year veteran of the agency.

“This was a colossal cock-up inside the police and the GCSB,” Grant Robertson, a Labour deputy leader (in the political opposition) told the channel.

Prime Minister John Key also told 3News that there were big changes in the works with respect to the GCSB.

In an e-mail to Ars, Ira Rothken, Dotcom's attorney, said that his client "will seek a remedy not only to protect his rights but to protect the rights of all NZ residents against illegal spying."

"Given the repeated illegal acts and rights abuse by the government in this case from illegal search warrants to illegal spying to the illegal removal of data by the US, the case should be dismissed in the interests of justice," he added.

The extent to which the **AA's tenticles extend into governments around the world and what can happen to you if you piss it off is amazing.

Have to agree with this. Most people are pissed about NZ doing the U.S. government's bidding, with little or no questioning, but forget that the content industry is the one behind the U.S. government's reason for action.

Oh man, to be a fly on the wall at the RIAA and MPAA offices if Kim Dotcom gets off scott free thanks to government overreach and mismanagement of the case--which was at least partially due to their meddling.

Contrast the NZ reaction to their government's illegal spying (people resign) with the US response (pass a law to retroactively authorize it).

And of course retroactive immunity encourages future crime. Nothing changes until people go to prison. But immunity is only granted when it serves the interests of the state. Kiriakou is doing the time and probably so will Manning.

Kim Dotcom is a bad internet joke, but I have to admit that it's pretty entertaining seeing him beating the crap out of governments. If this were the plot of a movie, it would be called ridiculous and unrealistic.

Contrast the NZ reaction to their government's illegal spying (people resign) with the US response (pass a law to retroactively authorize it).

And of course retroactive immunity encourages future crime. Nothing changes until people go to prison. But immunity is only granted when it serves the interests of the state. Kiriakou is doing the time and probably so will Manning.

They weren't just provided retroactive immunity, they were provided retroactive AND INDEFINITE FUTURE immunity.

"Given the repeated illegal acts and rights abuse by the government in this case from illegal search warrants to illegal spying to the illegal removal of data by the US, the case should be dismissed in the interests of justice," he added.

The illegal acts and rights were done by the NZ GCSB and the NZ Police as they were the ones that issued an illegal warrant and carried out the illegal raid, search and illegal removed property from Dotcom's home. The US were not the ones who carried out any of these illegalities and as such cannot be held responsible for these illegalities carried out by the incompetence of the NZ authorities. If a person messed up a job in the way he did the job then the blame lies with him and not the person who gave him the job to do.

The US will never drop this case because of the illegalities carried out by NZ authorities and they certainly will never take responsible or be accountable for the incompetent actions of the NZ authorities with doing the job.

It doesn't really matter: the U.S. doesn't have a case if evidence was obtained illegally -- everything would be inadmissible and the U.S. would not have a leg to stand on when trying to get him deported to the U.S. for trial. As long as KDC doesn't visit the U.S. he should be fine.

I see no evidence of a "cock-up". NZ Labor is being too kind. I see a conscious decision to ignore the law, which in this case, means a conscious decision to commit a criminal act.

I find it inconceivable that government employees of a SIGINT agency would not know the law in this regard. In my experience, this is drummed into them in day one of their training, and is repeated ad nauseum whenever challenged about the morality or propriety of their jobs.

Furthermore, in the initial claims, we see evidence of a cover-up which has now been blown wide open, and which also raises questions of when John Key and members of his government were alerted about the breach of the law by GCSB.

Good article, intelligent comments.Can't have that, lets get some shills and trolls to start spreading FUD here ASAP!Yep, contact Titanium Dragon first, he knows the others and can start up his sock puppets as well!

It is nice to see that there is at least one government in the world where government oversight works - even if it is retrospectively.

I wager government oversight here works as good as in most other first world companies...it works when there is enough light and publicity on it and they have to show the "commoners" that they are doing something about it.

I wager government oversight here works as good as in most other first world companies...it works when there is enough light and publicity on it and they have to show the "commoners" that they are doing something about it.

After writing the above, I realized it would be more accurate to describe it as "Checks & Balances" than oversight - oversight may have prevented this mess in the first place.

The US doesn't have to provide actual evidence, they only have to provide a summery of evidence as per ruled by The Appeals Court in NZ. The US provided a summery of evidence last year when they applied for extradition and this evidence for the summery was already obtained before the illegal warrant, raid, search and seizure of property on Dotcom's home. It doesn't matter that any evidence obtained from this illegal warrant, raid, search and seizure cannot be used as the summery evidence for extradition that the US provided does not include any of that evidence at all.

The important thing here is extradition. Given the significant level of incompetence shown by NZ law enforcement and its spy agency, it is highly unlikely the NZ courts will even grant extradition in the first place.

The US can only try Kim Dotcom if they get a hold of him. The serious mistakes made in this Comedy of Errors make it highly unlikely the NZ courts will ever grant extradition.

The US doesn't have to provide actual evidence, they only have to provide a summery of evidence as per ruled by The Appeals Court in NZ. The US provided a summery of evidence last year when they applied for extradition and this evidence for the summery was already obtained before the illegal warrant, raid, search and seizure of property on Dotcom's home. It doesn't matter that any evidence obtained from this illegal warrant, raid, search and seizure cannot be used as the summery evidence for extradition that the US provided does not include any of that evidence at all.

Emphasis mine.

According to the article, the illegalities of all the surveillance started in 2011, the raid in January of 2012, and you're saying that the US provided the summary of evidence last year before that when they applied for extradition? Because that means they'd have to have provided the summary in the few short weeks of the year prior to the raid, and thereby providing it prior to the actual gathering of said evidence.

If you're trying to say something else, I'm missing it entirely, sorry. But it sounds to me like you're not understanding the chain of events or you are willfully ignoring the culpability of all parties involved. If evidence is deemed illegally gained, then it's thrown out. It doesn't matter if the US/**AA had any foreknowledge that it was illegal, the way the NZ government did. It's still illegal. They have no evidence they can solidly point to for extradition. The evidence was ruled illegal and thrown out. That doesn't change.

It doesn't really matter: the U.S. doesn't have a case if evidence was obtained illegally -- everything would be inadmissible and the U.S. would not have a leg to stand on when trying to get him deported to the U.S. for trial. As long as KDC doesn't visit the U.S. he should be fine.

I disagree. There are too many egos and reputations riding on this. One way or the other, on this "offense" or another, legally or illegally, The US authorities will get to him. At a business level, of course, they already have.

"Given the repeated illegal acts and rights abuse by the government in this case from illegal search warrants to illegal spying to the illegal removal of data by the US, the case should be dismissed in the interests of justice," he added.

The illegal acts and rights were done by the NZ GCSB and the NZ Police as they were the ones that issued an illegal warrant and carried out the illegal raid, search and illegal removed property from Dotcom's home. The US were not the ones who carried out any of these illegalities and as such cannot be held responsible for these illegalities carried out by the incompetence of the NZ authorities. If a person messed up a job in the way he did the job then the blame lies with him and not the person who gave him the job to do.

The US will never drop this case because of the illegalities carried out by NZ authorities and they certainly will never take responsible or be accountable for the incompetent actions of the NZ authorities with doing the job.

Does anybody know if the 'fruit of the poisonous tree' doctrine applies to evidence illegally obtained by foreign actors?

Even in the...less than totally likely...event that the US had nothing to do with 'encouraging' the local authorities to pursue the matter with vigor, any evidence that they managed to turn up is still seriously tainted by the illegality of its procurement(that and they've been surprisingly bad at demonstrating that megaupload was actually outside the DMCA safe-harbor provisions, rather than merely more colorful than other hosting services about the fact that anybody with user-submitted material probably has a load of copyright infringement, some of it not yet discovered).

Oh man, to be a fly on the wall at the RIAA and MPAA offices if Kim Dotcom gets off scott free thanks to government overreach and mismanagement of the case--which was at least partially due to their meddling.

And he was their big test case poster child for those wicked, sinful, 'file locker' sites... If they can't take down somebody as flamboyant and occasionally-legally-entangled as Dotcom, they have nothing on every last copycat 'file-locker' that nominally complies with DMCA takedowns, to stay within safe harbor, and keeps their mouth shut about the open secret of how much of the material is probably illicit.

It doesn't really matter: the U.S. doesn't have a case if evidence was obtained illegally -- everything would be inadmissible and the U.S. would not have a leg to stand on when trying to get him deported to the U.S. for trial. As long as KDC doesn't visit the U.S. he should be fine.

I disagree. There are too many egos and reputations riding on this. One way or the other, on this "offense" or another, legally or illegally, The US authorities will get to him. At a business level, of course, they already have.

You could be right -- just like how they eventually got Al Capone for tax evasion.

"Given the repeated illegal acts and rights abuse by the government in this case from illegal search warrants to illegal spying to the illegal removal of data by the US, the case should be dismissed in the interests of justice," he added.

The illegal acts and rights were done by the NZ GCSB and the NZ Police as they were the ones that issued an illegal warrant and carried out the illegal raid, search and illegal removed property from Dotcom's home. The US were not the ones who carried out any of these illegalities and as such cannot be held responsible for these illegalities carried out by the incompetence of the NZ authorities. If a person messed up a job in the way he did the job then the blame lies with him and not the person who gave him the job to do.

The US will never drop this case because of the illegalities carried out by NZ authorities and they certainly will never take responsible or be accountable for the incompetent actions of the NZ authorities with doing the job.

Does anybody know if the 'fruit of the poisonous tree' doctrine applies to evidence illegally obtained by foreign actors?

Even in the...less than totally likely...event that the US had nothing to do with 'encouraging' the local authorities to pursue the matter with vigor, any evidence that they managed to turn up is still seriously tainted by the illegality of its procurement(that and they've been surprisingly bad at demonstrating that megaupload was actually outside the DMCA safe-harbor provisions, rather than merely more colorful than other hosting services about the fact that anybody with user-submitted material probably has a load of copyright infringement, some of it not yet discovered).

I came to post a similar speculatory question. However, in terms of US law (as in, assuming Kim were ever to be extradited even), I think one glaring road block would be whether or not the searches and surveillance were done even at all at the behest of US law enforcement/government entities. I'm fairly sure that any involvement at all (even if the pressure wasn't for illegal acts) would qualify it as tainted, as it's no longer an unaffiliated third party bringing forth the evidence. But I could be completely wrong: it would be interesting to hear from someone with some criminal law background.

It doesn't really matter: the U.S. doesn't have a case if evidence was obtained illegally -- everything would be inadmissible and the U.S. would not have a leg to stand on when trying to get him deported to the U.S. for trial. As long as KDC doesn't visit the U.S. he should be fine.

I disagree. There are too many egos and reputations riding on this. One way or the other, on this "offense" or another, legally or illegally, The US authorities will get to him. At a business level, of course, they already have.

You could be right -- just like how they eventually got Al Capone for tax evasion.

I was as surprised as anyone to hear that Dotcom has established a safe house and training facility for al qaida terrorists in his mansion in New Zealand. It will be an unfortunate and tragic bit of collateral damage when, I mean, if, he is accidentally killed in a fully justified drone strike on the terrorist training camp.

I see no evidence of a "cock-up". NZ Labor is being too kind. I see a conscious decision to ignore the law, which in this case, means a conscious decision to commit a criminal act.

I find it inconceivable that government employees of a SIGINT agency would not know the law in this regard. In my experience, this is drummed into them in day one of their training, and is repeated ad nauseum whenever challenged about the morality or propriety of their jobs.

Furthermore, in the initial claims, we see evidence of a cover-up which has now been blown wide open, and which also raises questions of when John Key and members of his government were alerted about the breach of the law by GCSB.

This is deeply disturbing.

Exactly. They are a spy agency, they would know that the law prevents them form spying on permanent residents. And a spy agency would also know that their target is a permanent resident. There is no excuse.

The resignation of one guy at the top is not enough. In my opinion *every single government employee* involved the case should face criminal charges.

Each and every one of them should have refused to get involved. They should have reported the criminal activity to the media the instant they learned that somebody else in the organisation had agreed to work on it.

The illegal acts and rights were done by the NZ GCSB and the NZ Police as they were the ones that issued an illegal warrant and carried out the illegal raid, search and illegal removed property from Dotcom's home. The US were not the ones who carried out any of these illegalities and as such cannot be held responsible for these illegalities carried out by the incompetence of the NZ authorities. If a person messed up a job in the way he did the job then the blame lies with him and not the person who gave him the job to do.

BUT we shouldn't forget that it was the US that pushed for extradition, the US that argued that seized hard drives had to be sent to them in order to be properly copied, and the US that allowed itself to be influenced by private interests.

I liken this to warrantless searches at the US border. In Dotcom, American civil rights (4th Amendment etc) prevented the government from getting actionable information, so they got NZ to do the dirty work. Just like when they can't search your laptop because there's no probable cause that you committed a crime, so they get you at the border where they don't need a warrant. I might feel better about these abuses if I thought they contributed to my safety, but sadly, I view both of these actions as government retribution against those who piss them off, rather than any legitimate security claim.

A note to the US: when you want some shitty work done right, you'd better do it yourself. As much of a ridiculous cartoon as Kim <whatever> is, it is hilarious and absurd seeing a fat nerd get the better of the US government's puppets.

Well, KDC is NOT getting extradited. This is the final nail in that corpse. Any one care to bet? I'd give two to one and still make good money.

Now he gets to sue everyone in NZ.

In the US his legal folks will have to fight for some time, 2-3 years to get the case quashed. Of course this is after the Canadian authorities provide very little from the Canadian servers seized.. Then they'll have to fight for another 1-2 years to get his money back.

So in 3-5 years, KDC has no charges against him and gets his money back. I'd say about 5 years. Then he gets to sue in the US.

Meanwhile it costs the US taxpayer many millions to have pursued this BS case on behalf of the "AA's".

The US doesn't have to provide actual evidence, they only have to provide a summery of evidence as per ruled by The Appeals Court in NZ. The US provided a summery of evidence last year when they applied for extradition and this evidence for the summery was already obtained before the illegal warrant, raid, search and seizure of property on Dotcom's home. It doesn't matter that any evidence obtained from this illegal warrant, raid, search and seizure cannot be used as the summery evidence for extradition that the US provided does not include any of that evidence at all.

The important thing here is extradition. Given the significant level of incompetence shown by NZ law enforcement and its spy agency, it is highly unlikely the NZ courts will even grant extradition in the first place.

The US can only try Kim Dotcom if they get a hold of him. The serious mistakes made in this Comedy of Errors make it highly unlikely the NZ courts will ever grant extradition.

Well they could always just do what they did before: invent a conspiracy and get someone to confess to its existence, so they can use the RICO statutes to apply higher charges and try him in absentia. It's why "al Qaeda" was invented after the WTC basement bombing, they pressured the perpetrator to admit to being A FOUNDER of a larger group (knowing he had a history of dishonesty and making himself sound more important than he was), and did so in exchange for lighter sentencing via a plea bargain. As a result, the US gets to say there's this overarching terrorist organization dubbed al Qaeda and can now use the RICO statutes to convict and sentence accused terrorists even if we don't have them or know where they are.

taswyn wrote:

fuzzyfuzzyfungus wrote:

Corby wrote:

"Given the repeated illegal acts and rights abuse by the government in this case from illegal search warrants to illegal spying to the illegal removal of data by the US, the case should be dismissed in the interests of justice," he added.

The illegal acts and rights were done by the NZ GCSB and the NZ Police as they were the ones that issued an illegal warrant and carried out the illegal raid, search and illegal removed property from Dotcom's home. The US were not the ones who carried out any of these illegalities and as such cannot be held responsible for these illegalities carried out by the incompetence of the NZ authorities. If a person messed up a job in the way he did the job then the blame lies with him and not the person who gave him the job to do.

The US will never drop this case because of the illegalities carried out by NZ authorities and they certainly will never take responsible or be accountable for the incompetent actions of the NZ authorities with doing the job.

Does anybody know if the 'fruit of the poisonous tree' doctrine applies to evidence illegally obtained by foreign actors?

Even in the...less than totally likely...event that the US had nothing to do with 'encouraging' the local authorities to pursue the matter with vigor, any evidence that they managed to turn up is still seriously tainted by the illegality of its procurement(that and they've been surprisingly bad at demonstrating that megaupload was actually outside the DMCA safe-harbor provisions, rather than merely more colorful than other hosting services about the fact that anybody with user-submitted material probably has a load of copyright infringement, some of it not yet discovered).

I came to post a similar speculatory question. However, in terms of US law (as in, assuming Kim were ever to be extradited even), I think one glaring road block would be whether or not the searches and surveillance were done even at all at the behest of US law enforcement/government entities. I'm fairly sure that any involvement at all (even if the pressure wasn't for illegal acts) would qualify it as tainted, as it's no longer an unaffiliated third party bringing forth the evidence. But I could be completely wrong: it would be interesting to hear from someone with some criminal law background.

So far as I understand the relevant law in the US, if the US actors were AWARE that it was obtained illegally (they would have to be, from what we've learned so far) then it cannot be used in the US. The precedent for this that I know of is that if I still a book from someone, and then turn it into the police because I found blood on it, they can use it as evidence. If, on the other hand, they tell me that Joe is a suspect but they need more evidence, and I subsequently break into Joe's place to steal the book with the blood on it, they can't use it, as it can be argued that they influenced / encouraged me to do something they legally couldn't. By the same logic the latter situation would seem to apply here: the NZ LEOs were aware that what they were doing was illegal, the US would be aware because of how closely they were working with NZ and in fact were pressuring NZ to do it in the first place, so it's likely anything obtained as a result of the NZ surveillance would be thrown out in the course of a trial. That's all assuming they actually manage to extradite him, though (I don't think we're doing extraordinary renditions for this particular type of "terrorism," at least not yet; give the MAFIAA time, they regularly claim that those damn dirty pirates help terrorists and drug dealers, it's not a stretch for them to label the pirates themselves terrorists.)

Given that Dotcom bribed his way into New Zealand in the first place, my sympathy for him is non-existent. He never should have been granted residency in the first place.\

Quote:

So far as I understand the relevant law in the US, if the US actors were AWARE that it was obtained illegally (they would have to be, from what we've learned so far) then it cannot be used in the US. The precedent for this that I know of is that if I still a book from someone, and then turn it into the police because I found blood on it, they can use it as evidence. If, on the other hand, they tell me that Joe is a suspect but they need more evidence, and I subsequently break into Joe's place to steal the book with the blood on it, they can't use it, as it can be argued that they influenced / encouraged me to do something they legally couldn't.

It would actually still be admissible in the second case. If, on the other hand, they asked for you to break into the place, THEN it would be illegal.

They can accept stolen evidence. Telling you that they don't have enough evidence for the case is perfectly legal on their parts. But they can't encourage you to gather evidence illegally. But if you decide to go all vigilante because the cops don't have enough evidence, anything you gather can be admitted into a court of law.

Note that you can still be prosecuted for gathering such data.

Unless the US told them to break the law, then the evidence is perfectly admissible.

“This was a colossal cock-up inside the police and the GCSB,” Grant Robertson, a Labour deputy leader (in the political opposition) told the channel.

What a fantastic use of the English language. Why can't our pols come up with statements like that?

They DO, though, they're just far louder about it and target people unrelated to or who are actually improving the issue; it's called passing the buck, as opposed to what went on here in NZ and blame was properly assigned and called out.